Christopher Gellel v Uber - [2025] FWCFB 19

[2025] FWCFB 19

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Christopher Gellel
v

Uber

(C2024/8560)

DEPUTY PRESIDENT MILLHOUSE

DEPUTY PRESIDENT O’NEILL
COMMISSIONER CONNOLLY

MELBOURNE, 5 FEBRUARY 2025

Appeal against decision [2024] FWC 3218 of Deputy President Saunders at Newcastle on 21 November 2024 in matter number U2024/10933 – permission to appeal refused.

Mr Christopher Gellel has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act) against a decision[1] of Deputy President Saunders, issued on 21 November 2024, for which permission to appeal is required. In the decision, the Deputy President declined to grant an extension of time for the filing of Mr Gellel’s application for an unfair dismissal remedy against the respondent, Uber.

The matter was listed for permission to appeal only. The parties consented to the application being determined without holding a hearing pursuant to s 607(1)(b) of the Act. We are satisfied that the question of permission to appeal can be adequately determined without the need for oral submissions. For the reasons that follow, permission to appeal is refused.

Decision under appeal

After setting out various procedural matters, the Deputy President turned to consider Mr Gellel’s application for an extension of time. Noting that the documentary material established that the respondent informed Mr Gellel of its decision to remove access to his account on 29 September 2020, the Deputy President recorded that the application was filed approximately 1,427 days (almost four years) outside the statutory timeframe for lodgement prescribed by
s 394(2) of the Act.

The Deputy President considered whether to allow a further period for Mr Gellel’s application to be made, having regard to the factors in s 394(3) of the Act. In relation to
s 394(3)(a), the Deputy President considered Mr Gellel’s submissions as to the reasons for the delay, which are listed at [16] of the decision. The Deputy President did not consider that the matters relied upon by Mr Gellel, individually or collectively, provided an acceptable or reasonable explanation for the lengthy delay. Nor did Mr Gellel produce to the Commission any medical evidence concerning the extent of the medical issues he relied upon and their impact on him over the four-year period following his deactivation.

The Deputy President was satisfied for the purposes of ss 394(3)(b), (c) and (d) that:

(a)Mr Gellel was aware of his dismissal at the time it had taken effect, which was a neutral matter in his consideration of an extension of time;
(b)Mr Gellel had taken action to dispute the dismissal by contacting the respondent which weighed in favour of an extension of time; and
(c)little weight was to be attributed to the question of prejudice to the respondent.

As to the merits of Mr Gellel’s substantive application (s 394(3)(e)), the Deputy President conducted an initial assessment of the material before him, noting that the substantial merits were not able to be fully examined at the extension of time hearing which was an interlocutory proceeding. The Deputy President recorded…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Christopher Gellel v Uber

Details

AGLC: Christopher Gellel v Uber [2025] FWCFB 19
Case: [2025] FWCFB 19
Decision Date: 5 FEBRUARY 2025

CaseChat Overview and Summary

In the Fair Work Commission, Mr Christopher Gellel has appealed a decision of Deputy President Saunders, issued on 21 November 2024, concerning the denial of an extension of time for filing an application for unfair dismissal against Uber. The appeal was lodged under s 604 of the Fair Work Act 2009 (Cth), and the application for permission to appeal was determined without a hearing. The appeal sought to challenge the Deputy President’s refusal to grant an extension of time for Mr Gellel to file his application for unfair dismissal, which was lodged approximately 1,427 days outside the statutory timeframe.

The legal issues before the Fair Work Commission Full Bench centred on whether the public interest warranted granting permission to appeal the Deputy President’s decision. The Full Bench had to consider whether Mr Gellel had demonstrated an arguable case of appealable error, particularly focusing on whether there was a significant error of fact or a manifest injustice. The Full Bench also had to assess if the appeal grounds raised issues of general application or highlighted an inconsistency in the application of legal principles.

The Full Bench concluded that permission to appeal should be refused. The reasoning was that Mr Gellel’s grounds of appeal did not identify any significant errors of fact or manifest injustice in the Deputy President’s decision. The Full Bench noted that Mr Gellel’s arguments largely mirrored his initial submissions for an extension of time and did not provide a compelling basis for an appeal. The Full Bench found that the Deputy President had correctly applied the principles for extensions of time as established in previous decisions. Consequently, the stringent test for granting permission to appeal under s 400 of the Fair Work Act was not met.

Permission to appeal is refused.

Orders